Obama, States’ Rights & Same-Sex Marriage

It takes a lot from an elected official to irk me these days because my expectations are pretty low. Let’s face it — politicians do not set the bar too high. Rod Blagojevich was just found guilty on seventeen counts of corruption, making him the fourth of the last seven Illinois governors who will serve time in jail. The Republican primary process seems more like a circus than anything resembling political/policy discourse. Ex-Representative Anthony Weiner, who was entrusted by his constituents to cast meaningful votes on matters ranging from the Wall Street Bailout to the use of military force in Iraq and Afghanistan, did not have enough common sense to avoid extreme ‘sexting.’ Spitzer, Edwards – I could go on. In a bipartisan overture, I would say that the most significant unifying factor between Democrats and Republicans is each party’s proclivity towards stupid behavior. But these events don’t bother me anymore; they’ve become so common-place that I really don’t expect anything much different.

A couple of weeks ago, however, I found myself surprisingly irked over something President Barack Obama said in a speech to a group of gay rights advocates. Obama reiterated his position that gay marriage is a matter best left for the states to decide, invoking the age-old “States’ Rights” argument in an attempt to evade handling the gay marriage hot potato “straight”-on. As a political maneuver, not bad. I completely understand his fear of alienating the Blue-Dog Democrats who have helped elect him. Also, let’s not forget about his socially conservative Hispanic voting contingent. From the liberal side, Obama definitely annoyed a few constituents; but why would he pander to lefties in his party; who else are they going to vote for in 2012? Bachman? Palin?!?! From his time as an Illinois State Senator to his current tenure as President, Obama has consistently flip-flopped on gay marriage. Currently, his position is ‘evolving.’ Normally, I would not fault a politician for feeling the need to side-step this contentious issue, especially so close to an election year. Every politician does it and Obama actually makes it look easy. My problem with Obama is that, given his past, his dishonesty on the issue is particularly troubling. I do not know what bothers me more, that the comment came from an African-American, from a child of a racially mixed marriage, or from a former constitutional law professor.
The Obama Administration and the Justice Department are currently in agreement with Section 2 of the Defense of Marriage Act, which states that:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same-sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

A victory for states’ rights. Obviously any proponent of the gay marriage states’ rights argument would be ill-advised to protest Section 2. The two go hand-in-hand. There have been numerous victories for states’ rights over the years, the most notorious being the Fugitive Slave Act of 1850. Not so many years ago, this country was embroiled in a constitutional controversy as to how to treat African-Americans who had been declared citizens in a ‘free state’ but branded as slaves in a ‘slave state.’ The Fugitive Slave Act of 1850 nipped that question in the bud by declaring that slave owners could not only ignore a free states’ bestowal of citizenship upon their ‘property,’ but that free states actually had to help return runaways into captivity. At least the DOMA does not force the exchange of homosexual couples between ‘gay’ and ‘straight’ states. It took 600,000 plus American lives and three constitutional amendments to take the slavery issue out of the hands of the states and place it into the hands of the federal government. Thank goodness.

States’ rights advocates suffered a setback in 1868 and some stalwarts who happened to be concentrated in the southern states fought tooth and nail to water down the impact of the 14th Amendment, which on its face guarantees people of every race, color, and religion equal protection of the laws. On March 20, 1924, the Virginia General Assembly passed the Racial Integrity Act, which required that a racial description of every person be recorded at birth and divided society into two classifications: white and colored. Among other prohibitions, the Act forbade members of different races to wed (the Act, for good measure, provided exceptions for the descendants of John Smith and Pocahontas). In 1967, in Loving v Virginia, the Supreme Court finally got around to declaring that law unconstitutional, on the grounds that it violated the equal protection provision of the 14th amendment. For 34 years, the Racial Integrity Act was alive and kicking in the great state of Virginia. I am relieved that Hawaii had no such law on its books in 1960 during the courtship between Mr. and Mrs. Obama, Sr.

President Obama and others opposed to federal intervention in the gay marriage debate point to the Constitution and the courts to defend their stance. They say that marriage between homosexuals is not a fundamental right guaranteed by the Constitution and that state laws which prohibit gay marriage should not be subject to the same judicial scrutiny as laws targeting members of different races or religions. As a constitutional law guru, President Obama is well aware that a good chunk of the freedoms we take for granted were not always, if ever, mentioned in the Constitution and, at one point or another, were not endorsed by the courts. To name a few: the right to an abortion, the right to forego medical treatment, the right to marry people of different races, the right to engage in homosexual intimacy in the privacy of one’s home, and last but not least, the right to be free from involuntary servitude. The list goes on. Before each of these rights came to fruition, politicians clamored about ‘states’ rights’ and how the federal government should butt out. History has shown that there are two ways a ‘new’ fundamental right can enter our lives, through a constitutional amendment or a Supreme Court decision. Obama has made clear his stance against a constitutional amendment protecting gay marriage, not that there is the slightest chance that such an amendment would pass. By defending Section 2 of DOMA and asserting that the matter should be left to the states, Obama is punting.

For centuries, Presidents and politicians have invoked the Tenth Amendment and ‘states’ rights’ argument to bolster their support base across wide spectrums. As an African-American, President Obama should take his cues from the ultimate non-punter president, Abraham Lincoln, who made tough decisions in tough times and ultimately paved the way for ‘equal protection of the laws.’ As the child of racially mixed parents, President Obama should reflect on the rulings of the Warren Court, the ultimate non-punter Supreme Court, who took credit for Loving v. Virginia. As a former constitutional law professor, President Obama should know better than anyone that history looks favorably upon leaders who transcend political gimmicks and take stances on tough issues.

My problem with President Obama is not that I disagree with his states’ rights’ argument per se, even though I do. My problem with him is that I do not think he is telling the truth. Even though all Presidents are dishonest to some extent, I think Obama’s comments are particularly untruthful and offensive, given his background. I feel like Obama is selling his soul in return for political brownie points. I would almost rather he snap a few pictures of his junk and accidentally post them to the White House website.